An accused may be convicted only of the crime charged in the information, or of that necessarily included therein. Where treachery or any other qualifying circumstance is not alleged in the information, the appellant cannot be found guilty of murder but only of homicide, even if the prosecution proves that the felon employed means, methods or forms which tend directly and specially to insure the commission of the crime without risk to himself arising from the defense that the victim might make. Such duly proven treachery can be appreciated only as a generic aggravating circumstance.

The Court thus takes this occasion to remind prosecutors to use extreme care in formulating and wording informations to include all the elements of the crime charged.chanrobles law library : red

Statement of the Case

The foregoing is the salient doctrinal feature of this Decision resolving the appeal of Nelson Agunias from his conviction for murder by the Regional Trial Court of Cebu.

In an Information dated February 9, 1994, the City Prosecutor of Danao City ("detailed at CPO, Cebu City per DOJ Order No. 60"), Casiano C. Vailoces, charged Accused-appellant Nelson Agunias alias "Brod Neil" and Accused Manuel Araneta alias "Wingwing" with murder allegedly committed as follows: 1

"That on or about the 23rd day of November, 1993 at about 11:20 o’clock (p.m.), in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping each other, armed with a gun, with deliberate intent, with intent to kill, did then and there attack, assault and shot one Ferdinand Amor, hitting him on the different parts of his body thereby inflicting upon him several physical injuries, which caused the death of said Ferdinand Amor."cralaw virtua1aw library

The case was raffled to Branch 14 of the Regional Trial Court 2 of Cebu City and docketed as Criminal Case No. CBU-36100. Arraigned on June 22, 1994, Appellant Nelson Agunias, assisted by counsel, pleaded not guilty to the charge. 3 Accused Manuel Araneta was and remains at large; hence, he was not arraigned. Thereafter, trial on the merits ensued. On March 31, 1995, the trial court rendered the assailed Decision, the dispositive portion of which reads: 4

"WHEREFORE, premises considered, the accused Nelson Agunias, alias ‘Brod Neil’ is hereby found guilty beyond reasonable doubt of the felony of murder as charged in the information, and neither mitigating or aggravating circumstances having attended the commission thereof, is hereby sentenced to thirty (30) years reclusion perpetua (Section 21, R.A. 7659). He is also condemned to pay unto the heirs the amount of P50,000.00 by way of death indemnity.

It appearing that the accused is a detained prisoner, and the Court having fixed a term for the penalty of reclusion perpetua meted out to him, he shall be credited in the service of his sentence with the time he has undergone preventive imprisonment in conformity with Article 29 of the Revised Penal Code, as amended.

Costs against the accused."cralaw virtua1aw library

Aggrieved by the Decision and the penalty imposed, Appellant Nelson Agunias appealed directly to this Court.

The Facts

The Version of the Prosecution

The trial court summarized the evidence presented by the prosecution as follows: 5

"The State’s case against the accused Nelson Agunias alias ‘Brod Neil,’ is erected upon the testimonies of prosecution witnesses Aldrin Velayo, Ramil Arnaiz and Nestor Veloria, 6 Jr., friends or acquaintances to both the accused Nelson Agunias and the deceased Ferdinand Amor. Almost to a man these three prosecution witnesses testified that at past 11:00 o’ clock on the evening of November 23, 1993 they were at a store at T. Padilla Extension in this City, along with Nick Sapio, Allan Antifuna, the other accused Manuel ‘Wing-wing’ Araneta and the deceased Ferdinand Amor drinking Tanduay, when the accused Nelson ‘Brod Neil’ Agunias, passed by. Amor offered Agunias a shot of liquor but the latter refused, saying that he had not yet taken his supper. Moments later a shot rang out, the bullet hitting Amor at the back.

Aldrin Velayo testified that the shot came from the direction of the accused Nelson Agunias, whom he saw tucking into his waistline the fatal gun. Velayo also heard Amor telling him as he (Amor) slumped, ‘Bay, I was shot by Brod Neil.’

Ramil Arnaiz, for his part, testified that after the shot rang out, he turned his back and saw Agunias still aiming his gun at the back of the victim, who had his back turned toward his assailant when he was shot; that, as matter of fact, Agunias was only some two armslength away from the victim when Agunias shot him; that after shooting Amor, Agunias immediately tucked his gun into his waistline and walked away; that after being hit Amor shouted for help, and said to him (Arnaiz): ‘Bay, you run because I have been shot by Brod Neil.’

Upon the other hand, Nestor Veloria, Jr. declared that when the shot rang out, he saw Amor jerk or jump; that Amor told him to run because ‘Brod Neil shot me’; and that he (Veloria) turned to see where the shot came from, and he saw, Agunias still pointing the gun at Amor.

Dr. Miguel Mancao, physician surgeon, testified that it was he who examined Ferdinand Amor when the latter was brought to the Emergency Room of the Cebu Doctor’s Hospital here in Cebu City, at about 11:45 o’clock in the evening of November 23, 1993; that at the time of Amor’s examination, Amor had no blood pressure, and upon resuscitation, his diastolic rose to eighty over zero blood pressure, so he (Dr. Mancao) had to insert a tube and Amor’s blood pressure rose to 100, for which reason Amor had to be brought to the operating room; that during the operation he found that a buller (sic) or slug had become embedded in the vertebra, fracturing Amor’s rib, penetrating the left lower lung, and lacerating the left pulmonary vein; and that he was about to close the operation when Amor suffered cardiac arrest and died at the operating table, Dr. Mancao identified the death certificate he issued which had been marked in evidence as Exhibits B, B-1, B-2.

The Version of the Defense

On the other hand, the Public Attorney’s Office, as counsel for Appellant Agunias, narrated the defense’s version of the facts thus:chanrob1es virtual 1aw library

The accused NELSON AGUNIAS testified in his own behalf and stated that he is 23 years old, single, a salesman of Golden Star and residing at Villa Gonzalo II, Cebu City. On November 23, 1993, at about 9:30 o’clock in the evening, he just came from the Salvation Army and was about to go home when he passed by two female friends namely Joy and Jeryl near the store located at the side of T. Padilla Extension. He had a chat with his two female friends. At the other side of the store, there were people drinking. One of them called him and the victim Ferdinand Amor offered him a glass of liquor. He declined the offer because he had not eaten supper yet. He proceeded home to take a bath in the communal bathroom before eating supper. While he was taking a bath, he heard a faint explosion. He ignored it and continued with his bath. About 3 to 5 minutes later, two of his barkadas namely Gerome and Talio passed by and informed him that somebody was shot at the store. Then he wrapped himself with a towel and proceeded to the store to check what happened. When he got out, he saw the victim being loaded into a panel by two others. Then he approached Jeryl and asked her what happened but she replied that she did not know. Wingwing Araneta was also there but the latter did not know also what happened. After that incident on November 23, 1993, he continued reporting to his usual work. It was only eight or nine days later that a policeman came asking around and informed him that he was the one who shot the victim. (TSN, December 12, 1994, pp. 2-7).

During cross-examination, he stated that the victim Ferdinand Armor was his friend and he knew some of the prosecution witnesses. (TSN, December 12, 1994, p. 8).

BRANDO RUFLO testified that the accused is a friend of the late Ferdinand Amor. The victim was a constant companion of the accused before the latter entered the Salvation Army. On November 23, 1993 at around 11:00 o’clock in the evening, he was at the store of his uncle, watching television. The store of his uncle was about ten meters away from the place where the victim was shot. While watching TV, the accused approached him and borrowed a bath soap. The latter proceeded to take a bath. Then, there was a commotion outside. According to the people outside, Ferdinand Amor was shot. He went out and informed the accused that his friend was shot. They learned that the victim was taken to the hospital so he returned inside the store and watched TV. Inside the store, he was able to talk to Wingwing Araneta and the storekeeper. Both of them told him that they did not see what happened. (TSN, December 13, 1994, pp. 2-5).

On cross-examination, he stated that he was surprised why Nelson Agunias was a suspect in this case. There were other groups who have grudges against Ferdinand, like the workers of Gothing, the group from Palma, Mcarthur and Villagonzalo. (TSN, December 13, 1994, p. 7).

The Issues

In his brief, appellant imputes the following errors to the trial court: 7

"I

The lower court erred in giving credence to the testimonies of prosecution witnesses and in disregarding the testimony of the Accused-Appellant.

In substance, appellant assails the credibility of the prosecution witnesses. However, he fails to substantiate his second allegation that the court a quo erred in convicting him; he merely parrots the pronouncement of this Court that "the weakness of alibi of the accused could not strengthen the prosecution’s case." 8 We will, nonetheless, discuss motu proprio an additional issue: whether treachery may be appreciated as a qualifying circumstance.

"Undoubtedly, the crime committed by the accused under the facts proved is murder because the slaying was attended by treachery (alevosia), the victim having been shot from behind by the accused, and the accused having evidently employed or adopted that method of killing his victim which directly and specially insured its execution without risk of himself arising from the defense which the deceased might make or might have made. In fact, the victim, who as the evidence shows, was then drinking and having a good time with his friends and companions, was completely unaware that the accused had determined to assassinate or execute him at the time.

To be sure, the Court must reject the accused’s disavowal or denial — or what amounts to the same thing, his alibi — of his authorship of the felony charged. For, as the evidence at bar conclusively shows, he was clearly identified by the three prosecution witnesses aforesaid as the assassin and executioner of the deceased. Furthermore, he failed to prove that it was physically impossible for him to be at or near the scene or situs of the crime when it was committed. If at all, he admitted that he was near or at the scene or situs of the crime at the time it was committed."cralaw virtua1aw library

The Court’s Ruling

The trial court’s Decision should be modified. While the said court correctly assessed the presence of treachery, appellant nonetheless cannot be convicted of murder because the information failed to allege such vital circumstance. Because of this error of the prosecution, appellant may be convicted only of homicide.

First Issue: Credibility of Prosecution Witnesses

Appellant claims that the "marked contradictions and inconsistencies in the testimonies of the prosecution witnesses" show that the trial court "erred in giving weight and credence" to their testimonies. 10 He contends that the testimonies of prosecution witnesses are "conflicting and unreliable." 11 Prosecution Witness Aldrin Velayo allegedly narrated conflicting versions on the shooting of the victim. On direct examination, Velayo testified that he did not see the firearm used in the shooting. On cross-examination, however, he averred that he did see the said firearm that appellant subsequently tucked in his waist. 12 When confronted later with his affidavit of December 1993, in which he stated that he did not actually see appellant shoot the victim, he backtracked and explained that, after hearing the gunshot, he saw appellant tuck the gun in his waist. 13

Appellant further points to an alleged conflict in the testimonies of the prosecution witnesses regarding "the place where accused went after he declined the offer of Ferdinand Amor for one shot of liquor." 14 According to Witness Aldrin Velayo, appellant went inside the store with an unknown companion. On the other hand, Witness Ramil Arnaiz testified that appellant "passed by the side of the store." Witness Nestor Villoria, Jr. said that appellant "entered the pathway behind the store" after the latter declined the offer to drink. 15

Allegedly, there was also "great variance" 16 in the testimonies of prosecution witnesses on the identities of the participants in the drinking spree that fateful night. Witness Aldrin Velayo named all the seven persons present. Witness Ramil Arnaiz, on the other hand, was able to identify only three of the seven persons. He even failed to mention the name of Ferdinand Amor, the victim. Because of this, appellant labels Witness Ramil Arnaiz "a perjured witness."cralaw virtua1aw library

Appellant also argues that Aldrin Velayo’s testimony "is incredible." If it was true that he was inside the store when he shot the victim, appellant now wonders why "none of the other people" inside the store at that time came forward to testify. 17 Appellant adds that tucking a gun in his waist in front of persons who could easily identify him "is beyond the ordinary experience of mankind." 18

Appellant also attacks Prosecution Witness Nestor Villoria’s testimony "that the victim was shot at [the] left side" because he was presented after Dr. Mancao had already testified on the same point. He argues in effect that Villoria merely took a cue from the doctor s testimony. 19

Appellant’s arguments are untenable. Well-settled is the rule that factual findings of the trial court are accorded high respect and are generally not disturbed by appellate courts unless found to be clearly arbitrary or unfounded. 20 In the present case, appellant has failed to show why we should depart from this time-tested doctrine. He has given us no cogent reason to alter the findings of the court a quo.

True, Witness Aldrin Velayo did not see appellant shoot the victim; however, he was consistent in his testimony that he saw appellant tuck a gun in his waist immediately after the gunshot. And at the hospital he found that the gun was a .22 caliber pistol. He testified: 21

"ATTY. TANEO IN HIS CROSS-EXAMINATION [OF] THE WITNESS

x x x

Q So, based on what is stated in paragraph 3 of your affidavit, is it not a fact that as stated here in the paragraph 3, you did not actually see who shot Ferdinand Amor, but you only heard a gun fire after which you turned your head back, is that correct?

A Immediately after the gun fire I turned my back and then I saw Nelson Agunias.

Q That was immediately after the gun fire but at that time of the burst that single gun fire you did not see who shot Ferdinand Amor?

COURT:chanrob1es virtual 1aw library

At the time of actual shooting, you did not see who actually shot Ferdinand Amor?

A Immediately after the gun fire I saw the accused tucking the firearm to his waistline and there was another person who is drinking at the store whom I did not recognize.

ATTY. TANEO:chanrob1es virtual 1aw library

You still did not give a categorical answer, the question is, did you actually see who shot Ferdinand Amor?

PROS. SOLIMA:chanrob1es virtual 1aw library

Your Honor, Please, it has been already answered that immediately after the gun fire he saw the accused pointing his firearm then put the gun to his waistline.

COURT:chanrob1es virtual 1aw library

Did he say he saw the accused pointing his gun?

PROS. SOLIMA:chanrob1es virtual 1aw library

Yes, your Honor, he is demonstrating.

ATTY. TANEO:chanrob1es virtual 1aw library

Putting his gun to his waistline not pointing his gun to the victim.

COURT:chanrob1es virtual 1aw library

Put back the question to the witness, and let him answer.

Q Did you actually see who shot Ferdinand Amor?

A At the time of shooting, I did not see Nelson Agunias aiming his gun to the victim but I only saw him immediately after the gun fire when I turned my back and I saw him tucking the firearm to his waistline."cralaw virtua1aw library

It should be noted that, among the persons inside the store where the drinking spree happened, only appellant was seen tucking a gun in his waistline; for that matter, he was the only one seen in possession of a gun. And after the gunshot was heard, Victim Amor "jumped or jerk[ed]" and uttered: "Brod Neil shot me." It should be added that only appellant was positioned at the back of the victim at the time of the shooting.

Also, Witness Ramil Arnaiz testified that he saw appellant pointing a gun at the victim right after the gunfire. He testified thus: 22

"Q When you said you saw, when you turned your face to the back after hearing that single gunshot, and you allegedly saw Nelson Agunias pointing a gun towards Ferdinand Amor, was Nelson Agunias directly at the back of Ferdinand Amor?

A Yes, Sir, because immediately after the gunshot I turned my back and I saw Nelson Agunias at the back of Ferdinand Amor with his gun pointed directly to the back of Ferdinand Amor because I was just in front."cralaw virtua1aw library

Witness Nestor Villoria, Jr., who was in an advantageous position — he was facing the victim when the latter was shot — identified appellant as the culprit. The material portion of his testimony reads: 23

Q Since you were facing directly Ferdinand Amor, if the assailant shot him at his back, you will agree that you could have seen the assailant directly because you were facing Ferdinand Anor (sic) at that time?

A At that time I heard a gunshot, I was strumming the guitar, so upon hearing the gunshot I put down the guitar and turned my head and verify (sic) where the gunshot came.

x x x

ATTY. TANEO:chanrob1es virtual 1aw library

Q When you saw the accused holding that pistol, was that after you heard the gunshot or before you heard the gunshot?

A Immediately after I heard the gunshot I saw him pointing the gun.

Q Was that the first time you saw the accused on the evening of November 23, 1993?

A That was the second time because at first he bought cigarette from the store."cralaw virtua1aw library

We deem the alleged inconsistency in Witness Aldrin Velayo’s testimony to be minor and inconsequential. Considering the lapse of time and the limitations of human memory, a witness telling the truth is not always expected to give a completely error-free testimony. Thus, we have followed the rule, in accord with human nature and experience, that honest inconsistencies on minor and trivial matters serve to strengthen rather than destroy the credibility of a witness to a crime, specially when the crime is shocking to the conscience and numbing to the senses. 24

It was not shown either that Witness Aldrin Velayo or the other prosecution witnesses had any motive to testify falsely against appellant. Absent evidence showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimony is thus worthy of full faith and credit.25cralaw:red

The alleged inconsistencies in the testimonies of the prosecution witnesses on where appellant went after declining the offer of liquor relate only to a minor detail. These do not alter the essential fact that appellant was seen, right after the gunshot, pointing his gun at the victim. As earlier observed, testimonial discrepancies may be due to the natural fickleness of memory. Such minor lapses tend to strengthen credibility, rather than weaken it, as they erase any suspicion of a rehearsed testimony. 26

The Court further holds that Prosecution Witness Ramil Arnaiz cannot be considered an unreliable witness. His presence at the locus criminis is undisputed. His failure to mention the name of Victim Ferdinand Amor can only be characterized as harmless. We fail to understand how the substance of the testimony of Arnaiz — that he saw appellant holding a gun right after the shooting of Ferdinand Amor — could be affected, much less discredited, by his failure to mention the name of Ferdinand Amor as a participant in the drinking spree.chanrobles.com.ph : virtual law library

We do not believe that it is contrary to human experience for appellant to tuck his gun in his waist in front of persons who could identify him. There is no standard human conduct concerning the disposition of a gun used in shooting a man. Different people react differently to the same stimulus, and tucking in a gun after firing it is not unnatural or eccentric.

Appellant’s failure to flee and the apparent normalcy of his behavior subsequent to the commission of the crime do not imply his innocence. Flight is indicative of guilt, but its converse is not necessarily true. Culprits behave differently and even erratically in externalizing and manifesting their guilt. Some may escape or flee — a circumstance strongly illustrative of guilt — while others may remain in the same vicinity so as to create a semblance of regularity, thereby avoiding suspicion from other members of the community. 27

Unacceptable is appellant’s argument that Prosecution Witness Nestor Villoria, Jr.’s credibility was impaired simply because he took the stand after Dr. Miguel Mancao did. The order of presentation of prosecution witnesses is the prerogative of the prosecutor; neither the appellant nor the trial court may interfere in it. 28 Other than his sterile insinuation, appellant has not produced any independent evidence showing prevarication on the part of Witness Villoria, Jr.

Second Issue: Alibi as a Defense

Appellant also raises the defense of alibi. After he was offered a drink which he refused, he allegedly proceeded to "the communal bathroom before eating supper." About "3 to 5 minutes later," he was informed that somebody was shot at the store. When he went out, he saw the body of the victim being loaded into a vehicle. Eight or nine days later, he was apprehended by policemen.

This defense of alibi must fail. Alibi is one of the weakest defenses, not only because it is inherently weak and unreliable, but also because it is easy to fabricate and difficult to check or rebut. It cannot prevail over the positive identification of the accused by eyewitnesses who had no improper motive to testify falsely. 29

The communal bath where he claims to have come from after the incident happened was only 30 to 35 meters away from the situs of the shooting. Appellant testified thus: 30

"ATTY. TANEO:chanrob1es virtual 1aw library

x x x

Q You were offered by Ferdinand Amor a glass of drinks and what was your reply?

A I refused the offer and I reasoned to him that I will go home and eat my supper first and I will be back later, and so I passed them by the alley and upon arriving I have to take a bath in a communal bath first before eating supper.

Q The place where you said you took a bath at the communal bath, how far was this to the place where Ferdinand Amor and his friends were having a drink?

A I think 30 to 35 meters.

Q While you were taking bath, what transpired next?

A About 10 minutes, while I was taking my bath, I heard a faint explosion."cralaw virtua1aw library

In People v. Azugue, we ruled as follows: 31

". . . For the defense of alibi to prosper, the accused must show that he was at such other place for such a period of time that it was physically impossible for him to have been at the place where the crime was committed at the time of its commission.’ In the instant case, the appellant failed to satisfy this requirement of time and place."cralaw virtua1aw library

Such circumstance of impossibility of place and time is obviously absent in appellant’s alibi.

Third Issue: No Qualifying Circumstance

Alleged in the Information

The trial court held that treachery qualified the killing to murder. The attack was sudden and it came from behind, without affording the victim any warning. The location and nature of the wound suffered by the victim and the fact that the appellant was armed with a gun show that appellant’s mode of attack was consciously and deliberately adopted. The victim’s situation bespeaks the futility of any defense. Clearly, the essence of treachery was established in this case, for appellant employed means, method or forms in the execution of the felony which tended directly and specially to insure its commission without risk to himself arising from any defense that the victim might make. 32

Be that as it may, we hold that treachery cannot be used to qualify the killing to murder. While the information charged the accused with murder, it contained no allegation of treachery or, for that matter, any other qualifying circumstance. Accordingly, treachery in this case may be treated only as a generic aggravating circumstance. 33

Thus, appellant should be convicted only of homicide under Article 249 34 and not of murder under Article 248 35 of the Revised Penal Code. There being one aggravating circumstance, the maximum imposable penalty should be reclusion temporal maximum. The minimum under the Indeterminate Sentence Law is any period within the penalty next lower, which is prision mayor.

WHEREFORE, premises considered, the appealed Decision is MODIFIED. Appellant is hereby found GUILTY beyond reasonable doubt of homicide. He is SENTENCED to serve ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum. The civil indemnity of P50,000.00 is AFFIRMED. Costs de oficio.

SO ORDERED.

Narvasa, C.J., Romero, Melo and Francisco, JJ., concur.

Endnotes:

1. Original Records, p. 1; rollo, p. 12.

2. Presided by Judge Renato C. Dacudao.

3. Per Certificate of Arraignment found in the Original Records, p. 12.

34. Article 249. Homicide. — Any person who, not falling within the provisions of article 246 shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.

35. "Article 248. Murder. — Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances:chanrob1es virtual 1aw library

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or person to insure or afford impunity.